and Your Family
Brooklyn Intestate Succession
"Intestate" is the legal term for passing away without having written a will. A will is a document in which you leave directions as to who should receive you property. You can be very specific about which friends, relatives and institutions receive a part of your estate. If you decide that you want to leave a particular relative nothing at all, you can do so with a will. However, if you die intestate then your property will be distributed according to New York's laws of intestate succession. Should this happen there is a strong possibility that the people who end up with your property will be different from those who you wanted to receive your property. While thinking about life after you have passed away can be frightening and unpleasant, it is wise to consider contacting a Brooklyn Intestate Succession Lawyer who will explain to you how the New York laws of intestate succession work and who will work closely with you to draft a will that sets forth the manner in which you want your estate to be distributed.
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New York intestacy laws identify only spouses and certain blood relatives as possible heirs. Your spouse and your children receive top priority under New York's intestate succession laws. If, for example, you are survived by your spouse, but have no children, your spouse will receive your entire estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. In other words, without a will your children and your spouse are automatically entitled to receive all of your estate.
New York also has rules regarding who is considered a child for purposes of inheriting. Adopted children are treated like biological children and are entitled to receive an intestate share. On the other hand, foster children and stepchildren are not considered biological children and, therefore, are not entitled to an intestate share unless you legally adopt them. Biological children who you have given up for adoption and who were legally adopted by another family are not entitled to inherit through intestate succession. If a biological child that is born after your death is entitled to an intestate share. If you father a child outside of marriage and paternity is established under New York law, that child is entitled to an intestate share. An order to pay child support is not sufficient to prove paternity. NY EPTL § 4-1.2
If you do not have children or a spouse who survive, New York intestate laws provide that various other blood relatives will receive your property in a specific priority. Such relatives include your parents, grandparents and other blood relatives. NY EPTL § 4-1.1
If you want relatives who are low on the priority list under intestacy rules to receive a share of your estate, or if you want friends or an organization such as your alma mater to receive a party of your estate, then you must say so in a will. Intestacy laws do not allow for non-relatives or institutions to inherit. Furthermore, suppose your only living relative is a cousin who you do not particularly like. If you pass away without a will, that cousin would likely receive your entire estate. The best way for your wishes to be fulfilled is for you to have a will.Selecting an Administrator
In your will you also name an executor. The executor is the person who manages your estate after you pass away. The executor's duties include taking care of your assets until they are distributed, paying your bills, filing and paying your final tax return, responding to claims against your estate, and ultimately distributing your assets according to the terms of your will.
If you do not have a will the court will appoint someone to act as your estate's administrator. This person will perform the duties that an executor would otherwise handle. This means that someone who you did not select, perhaps even a stranger, will be charged with handling your estate and dealing with sensitive family issues.Assets Not Subject to Intestate Succession
Not every asset in your estate will pass to your heir via intestate succession. Only the assets which would have been affected by your will will be subject to intestate succession rule if you pass away without leaving a will. For example, most property that is owned by you alone would have been affected by your will such as a vehicle, collectibles and personal property. Other property by its very nature will not go through your will, even if you have a valid will at the time of your death. Such property includes:
- Living Trust. Property that you have transferred to a living trust will go to the beneficiaries of that trust immediately upon your death.
- Life insurance proceeds. The beneficiaries who you designate in your life insurance policies will automatically receive the policy proceeds when you die. An exception to this rule is if you name your estate as the beneficiary. It that case the proceeds will go into your estate and be distributed to beneficiaries named in your will. If you do not have a will, the proceeds will go to your heirs through intestate succession.
- Retirement Accounts. Proceeds from a pension or retirement plan such as an IRA, 401(k), or defined benefit retirement account. The named beneficiaries automatically receive the proceeds.
- Securities held in a transfer-on-death account
- Payable-on-Death (POD) bank accounts or Totten Trust. The proceeds of trusts and accounts for which you designated a beneficiary upon your death will go directly to that beneficiary.
- Joint Tenancy. Property you own with someone else in joint tenancy with the right of survivorship or tenancy by the entirety will go to the other owner when you pass away.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
In order to make sure that every asset is distributed according to your wishes, it is not only important to have a will, but to have a comprehensive estate plan that addresses the disposition of every type of asset in your estate.Avoiding Intestacy
The easiest way to avoid intestacy is write a will and execute it according to the laws of New York. In order for a will to be valid in New York, certain formalities must be followed. New York law requires that you sign the will at the end. If you are unable to sign the will yourself, you can direct another person to sign it for you. There must be at least two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4). The witnesses must be present when you sign the will, or you must acknowledge to each witness that you did indeed sign the will. The witnesses must be adults and cannot be anyone you name as a beneficiary in your will. If a witness is also a beneficiary, the witness will not be permitted to receive the gift you left him or her in the will.
It is important to note that if you write a will but it is not drafted and executed in a manner that is consistent with New York law, your estate may still fall into intestacy.
There are exceptions to the general rule that in order for a will to be valid it must have been executed with the aforementioned formalities. Under certain very specific circumstances, a holographic will and a nuncupative will be accepted as valid. A holographic will is a will that is handwritten. A nuncupative will is one that is spoken. Holographic and nuncupative wills are only valid if the testator is a member of the armed forces or accompanying the armed forces during a time of conflict, or a mariner at sea. NY EPTL § 3-2.2. If you make a holographic or nuncupative will under other circumstances, the New York Surrogate's Court will not find the will to be valid. Your estate will pass by intestate succession.Intestate Succession and Trusts
An estate plan can and should include documents other than a will. For example, a trust is a common component of a comprehensive estate plan. One of the advantages of a trust is that the assets that are held in a trust can avoid probate. However, this does not mean that the best way to avoid intestate succession is to have a trust. Even when there is a living trust in place holding your assets it is possible that upon your death you will have assets that are left out of the trust. If that happens and you do not have a will, then those assets will be property subject to intestate succession. For example, if you acquire property or are given property and do not get around to transferring it to your trust before your death, than the property would be part of your estate and would be affected by a will if you have one. Otherwise, it will be distributed to your heirs via intestate succession.
It is important to keep in mind that it is a good idea for both young people and older people to make wills. It is relative unusual for young people to have wills, but it is not usual for young people to have significant assets. The consequences of dying without a will is that your final wishes may not be carried and those who you care about may not receive your property. Furthermore, if you do have a will, but it is declared invalid because it was not drafted or executed properly, your estate will be subject to the laws of intestacy. To ensure that your will and other estate planning documents are properly drafted and executed, it is important for you to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC will help create and execute a will and other estate planning documents that reflect your individual goals and that will ensure that your estate does not end up going to statutory heirs through intestate succession. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.